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SB 349 MORTGAGE RELIEF ACT

Current Location: SJC
Referrals: STBTC/SJC

[5] STBTC/SJC-STBTC [12] DNP-CS/DP-SJC

SB 349 PDF  |  SB 349 FIR


Scheduled on - Date:  Time:   Location:

3/08/2021 [12]STBTC - Do Not Pass - Committee Substitute Do Pass Senate Judiciary (SJC)
2/10/2021 [5] - Sent to location Senate Tax, Business and Transportation (STBTC)
Synopsis:

 Senate Bill 349 (SB 349) enacts the Coronavirus Disease 2019 Mortgage Relief Act. SB 349 provides definitions. SB 349 provides a moratorium on all foreclosures during the coronavirus disease 2019 public health emergency and requires certain disclosures be made to borrowers. SB 349 requires certain loss mitigation options and requires compliance as a precondition to foreclosure. Declares an emergency.

Analysis:

 Senate Bill 349 (SB 349) enacts the Coronavirus Disease 2019 Mortgage Relief Act. SB 349 provides definitions. SB 349 provides a moratorium on all foreclosures during the coronavirus disease 2019 public health emergency and requires certain disclosures be made to borrowers. SB 349 requires certain loss mitigation options and requires compliance as a precondition to foreclosure. Declares an emergency.

SECTION 1. SHORT TITLE.--This act may be cited as the Coronavirus Disease 2019 Mortgage Relief Act (Act).

SECTION 2. DEFINITIONS as used in the Act.

SECTION 3. MORATORIUM ON FORECLOSURES DURING CORONAVIRUS DISEASE 2019 EMERGENCY.
A stay on all pending and subsequently filed mortgage foreclosure proceedings shall be in effect for the duration of the coronavirus disease 2019 emergency. The stay on all mortgage foreclosure proceedings shall extend for the later of:
(1)180 days from the end of the governor's declared state of public health emergency; or
(2)120 days from the end of a borrower's final mortgage forbearance period.

B. For the period of time that the stay is in effect: 
(1) a servicer, owner or beneficiary of a mortgage loan may file, but shall not be permitted proceed to serve, seek judgment upon or otherwise advance any foreclosure action in the courts;
(2) for a foreclosure action pending in the courts on or before the effective date of the Act, all proceedings including filing of motions, entry of judgment and the scheduling or conduct of a foreclosure sale shall be stayed; 
(3) all proceedings in post-foreclosure sale eviction proceedings shall be stayed; and 
(4) all time periods required by any party to do any act related to a foreclosure proceeding, including a period for redemption, shall be tolled. 
C. The stay shall take effect immediately and automatically upon the effective date of the Act, without any requirement that individual borrowers request protection under that Act. 
D. Nothing in this section shall be construed to:
stay any proceeding in which the servicer adequately demonstrates, to the satisfaction of the presiding judge, that the property at issue meets specific conditions; and 
(2) prohibit the enforcement of a real estate contract. 

SECTION 4. LOSS MITIGATION GUIDELINES-- DISCLOSURES--FEDERALLY BACKED MORTGAGE LOANS.
A. Within 30 days of the effective date of the Act, a servicer shall send each borrower with a federally backed mortgage loan, for a property that is located within the state of New Mexico, an initial disclosure of the loss mitigation guidelines that apply to that borrower's loan. The disclosure shall include the information specified in this subsection.
B. The initial disclosure shall not be required to include eligibility determinations for a specific borrower, but shall describe the programs and options that the servicer currently offers for the borrower's type of loan.
C. After the initial disclosure a servicer shall provide each borrower with the same disclosure at least 30 days prior to the expiration of a forbearance period, at least 30 days prior to the filing of a foreclosure complaint and any time when a borrower requests assistance from the servicer to avoid foreclosure. 

SECTION 5. LOSS MITIGATION GUIDELINES-- DISCLOSURES--NON-FEDERALLY BACKED MORTGAGE LOANS.
A. Within 30 days of the effective date of the Act, a servicer shall send to each borrower with a residential mortgage, for a property that is located within the state and that is not a federally backed mortgage loan, a disclosure of the loss mitigation guidelines that apply to that borrower's loan. The disclosure shall include the information specified in this subsection.
B. After the disclosure, a servicer shall provide each borrower with a further disclosure addressing the same matters at least 30 days prior to the expiration of a forbearance period, at least 30 days prior to the filing of a foreclosure complaint and any time when a borrower requests assistance from the servicer to avoid foreclosure. 
C. No later than 30 days after the end of the public health emergency related to coronavirus disease and again, no later than 45 days before filing a complaint to foreclose, a servicer shall transmit a complete application for any loss mitigation option available to a borrower and confirm receipt of the same by the borrower. 
D. Unless investor guidelines or other legal requirements prohibit a servicer from compliance with this section, a servicer shall disclose all loss mitigation options potentially available to the borrower and whether investor guidelines or other legal requirements prohibit the servicer from offering such options to a particular borrower. The servicer shall provide the source of those guidelines or legal restrictions to the borrower. In providing the disclosure, the forbearance and post-forbearance loss mitigation options required to be disclosed and provided by the servicer shall be identical to loss mitigation options available at that time for similar loans owned or guaranteed by government-sponsored enterprises. 
E. In no event shall a servicer be entitled to recover from a borrower any cost incurred by the servicer in complying with the Act. 

SECTION 6. COMPLIANCE--PRECONDITION TO FORECLOSURE.
A. A servicer shall specify within and attach to a foreclosure complaint sufficient evidence that the disclosures required by the Act were provided to the borrower. 
B. It is unlawful for a servicer to file a foreclosure complaint, enter judgment of foreclosure or conduct a foreclosure sale unless the servicer has: 
(1) provided the borrower with the proper and timely disclosures as required by the Act; and 
(2) considered the borrower for forbearance and post-forbearance loss mitigation options, and if rejected, provided specific reasons to the borrower for that rejection and an explanation of any appeal rights available to the borrower. 

SECTION 7. FAILURE TO COMPLY.
 A. Failure to comply with the provisions of the Act: 
(1) may be used as a defense by a borrower in a foreclosure action; and
(2) shall constitute an unfair or deceptive trade practice and shall be subject to the penalties and remedies set forth in the Unfair Practices Act. 
B. In all claims involving a violation of the Act, the servicer or party seeking a foreclosure shall be required to prove compliance with the Act. 
C. A borrower prevailing in any proceeding to enforce the provisions of the Act shall be entitled to compensatory damages, punitive damages, costs and reasonable attorney fees. 

SECTION 8. EMERGENCY.--It is necessary for the public peace, health and safety that this act take effect immediately.

Amendments:

Current Law: